CHAPTER VIII

THE GROWTH OF NATIONAL POWER

It was a government of limited powers which the year 1789 saw established in the United States. To it was given the administration of certain broad functions. The control of foreign relations was surrendered into its hands, as was also the task of national defense. Adequate sources of revenue were provided, and limited supervision over commerce and business was made possible. The execution of these powers was divided among the various branches of the federal organization.

To the President, chiefly, was given the conduct of foreign relations. He was made the spokesman of the nation. His power to appoint ambassadors and consuls and to negotiate treaties, as well as to receive the appointees of foreign nations, made his control in this regard extensive indeed, but not exclusive; for the necessity of the Senate's ratification of both appointments and treaties gave that body a great restraining influence. And the fact that the assent of Congress was made necessary to the passage of appropriations or to a declaration of war, inevitably placed a portion of the control in the House of Representa

tives. Viewed as a question of the relationship of central to state authority, however, the Federal Government in this sphere was made supreme.

The powers of national defense were likewise distributed among the different branches of the Federal Government. The President was made commanderin-chief of the army and navy, and also of the state militia should that body be called into federal service. Congress, in turn, was given the right to raise armies and navies and to make rules for their government, as well as to erect arsenals, magazines, and forts. It was also granted power to make rules for the organization and maintenance of state militias, and for calling them into action to execute the laws of the Union, suppress insurrections and repel invasions. The states, however, retained the power of appointing officers and the authority to train their militia in accordance with federal rules. This, indeed, was the only limitation placed on federal power in this connection, save that no appropriation for the army could extend beyond two years.

The original grant of taxing power to the central government was, perhaps, as radical a change as any which the constitutional convention proposed, although it was by no means as broad in its scope nor as exclusive as either of the foregoing. Congress was given the power to lay and collect taxes and duties throughout the United States. Such levies, however, were required to be uniform and, in the case of a direct tax, to be laid in proportion to the population. (This

latter provision was somewhat modified with the passage of the sixteenth amendment.)

Less broad was the grant which gave the federal authority control over commerce and business. The national legislature was empowered to regulate commerce with foreign nations, and among the several states; to establish a uniform law on bankruptcy throughout the country; to coin money and regulate the value thereof—a matter excluded from state jurisdiction; to establish post offices and post roads; to promote the progress of science and the useful arts by copyrights and patents; and to fix the standards of weights and measures. Formidable as this list of powers seems, the superficial observation of any business man will reveal to him that, literally interpreted, the grant of power is limited, indeed. And yet compared with the powers conferred by the Articles of Confederation, it was a most radical alteration.

These, then, were the powers given to the Federal Government by the Constitution of 1789. These and these only! "The powers not delegated to the United States by the Constitution nor prohibited by it to the states, are reserved to the states respectively, or to the people." So did the tenth amendment seal the grant. Thus were the relations of the Federal Government to the states established.

It is very interesting to note how this relationship has been changing. Confined by its constitutional grant within a comparatively narrow sphere, the central government has gradually by this method

and that been extending the scope of its activities. Some slight broadening of its powers has occurred through the amendments. The thirteenth gave Congress the right to interfere with state action in regard to slavery. The fourteenth greatly extended the veto power of the federal judiciary over state action in that it provided that "no state shall make or enforce any law that shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” was not, however, until the sixteenth amendment was passed that any additional positive power was granted the central government. Permission "to lay and collect taxes on incomes from whatever source derived, without apportionment among the several states” was a distinctly positive grant of powers. Much more radical was the expansion of federal activity consequent to the passage of the eighteenth amendment.

It

This entire expansion is comparatively small, however, when compared with the enormous growth of federal power that has come through other channels. One of the greatest of these is the judicial doctrine of implied powers. The first great case to establish the principle was that of McCullough v. Maryland. Briefly, the facts of that case are as follows: Congress had incorporated a bank of the United States, a branch of which had been established in Baltimore. Maryland had subjected all banks not chartered by its

legislature to a stamp tax upon their note issues. McCullough, the cashier of the bank, had ignored the statute and been prosecuted accordingly. He was appealing the decision on a writ of error. One of the first questions to come up in the trial concerned the authority of Congress to establish a bank. Nowhere in the Constitution is there an express reference to such an institution. Chief Justice Marshall, however, sustained the right of Congress so to act by evolving the theory of "implied powers," that is, that the Constitution did not enumerate in detail all possible actions of Congress, but merely the ends for which the Federal Government was established. "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter and spirit of the Constitution are constitutional."

From this beginning the judicial expansion of the Constitution has been enormous. Federal meat inspectors find themselves stationed in slaughter houses of the big meat companies in Chicago by virtue of the fact that Congress has been given power to regulate interstate commerce. The line of reasoning that has made possible this development has been this: Congress has power to regulate interstate commerce. Therefore, Congress has power to prevent the use of interstate commerce in a way injurious to the people. It follows that it has the right to prevent any injurious food products from being carried in such commerce.